Speech – "The Origin and Practice of U.S. Commercial Human Space Flight Regulations"

"The Origin and Practice of U.S. Commercial Human Space Flight Regulations"
Dr. George C. Nield, Glasgow, Scotland
September 30, 2008

59th International Astronautical Congress

Good morning. It is an honor to have the opportunity to participate in this very special event.

My name is Dr. George Nield, and I am the Associate Administrator for the Office of Commercial Space Transportation, the unit within the Federal Aviation Administration that regulates commercial space launches in the United States.

Today I would like to discuss the paper that I and my FAA colleagues, Brooke Owens and John Sloan, have prepared, titled “The Origin and Practice of U.S. Commercial Human Space Flight Regulations.”

It is fitting to address this topic in the United Kingdom.

It was here, more than 160 years ago that government first undertook the regulation of the railroad, which of course was then the newest and most technically advanced means of transportation.

Railroad regulation at the time was untried and forbidding territory. The early steps taken here established lasting reference points useful to other nations in developing railroad regulatory regimes of their own.

Please understand that my purpose today is not to offer a model or to recommend any specific provisions for the regulation of commercial human space flight.

I would simply like to shed some light on what we have done in the United States. The FAA believes in commercial space transportation. When it comes to the regulation of commercial human space flight, the United States is fairly well along in the process of preparing itself.

In a considered and systematic way, the U.S. has made some policy choices. They are choices driven by entrepreneurs on the leading edge of commercial space flight technology; encouraged by Presidential vision and commitment; and facilitated by Congressional foresight and action.

We are realistic enough to understand that the questions ahead of us far outweigh the answers we have produced so far. But we are also confident enough to believe that we have chosen a sensible path to help safely advance the development of the world’s next major mode of transportation.

In the United States we are now at a point where a regulatory regime is in place and ready, and therefore, perhaps even a step or two ahead of the rocket developers’ timetable.

We believe that is a good thing, reflecting the government’s desire to move expeditiously in the interests of public safety while also reflecting the industry’s desire to design and test carefully for the very same reason.

Aviation in the United States

To be candid about it, in the pioneering days of American aviation, the story was somewhat different.

The Wright brothers made their first powered flight on December 17, 1903. It would be more than two decades — in fact, just a year before Charles Lindbergh flew across the Atlantic — before the federal government installed a full-scale aviation regulatory program.

In the meantime, aviation grew through trial and error, while regulation trailed behind. It was actually a community in the State of Florida that enacted the first aviation ordinance in 1908 to address limits on flights and establish a requirement for annual licensing. Connecticut, in 1912, became the first to adopt statewide air regulation.

In 1915, Congress created the National Advisory Committee for Aeronautics to investigate problems in aviation and propose ways to address them. But it would be another ten years before adoption of the Kelly Act. The Act laid the groundwork for a robust air transportation industry, using contracts for delivering mail to help provide private companies a source of revenue that, in turn, helped them develop airline passenger and cargo businesses.

Finally in 1926, Congress approved the Air Commerce Act. It provided, among other things, for licensing pilots, certifying aircraft, enforcing air traffic rules, and installing beacons for air navigation.

Still another 12 years passed before adoption of the Civil Aeronautics Act of 1938, which created the Civil Aeronautics Authority. Eventually that office was given responsibility for air traffic control and safety enforcement, while the Civil Aeronautics Board was assigned responsibility for safety rulemaking and airline economic regulation.

In 1958, Congress created the Federal Aviation Agency, eventually renamed the Federal Aviation Administration, which remains to this day America’s regulatory unit for aviation. It is also the home of the Office of Commercial Space Transportation, the subject to which I now turn.

Commercial Space Transportation

More than a quarter of a century ago, President Reagan’s 1982 National Space Policy made it clear that the government encouraged domestic commercial exploration of space for national economic benefit.

In May of 1983, a presidential directive declared that the U.S. government would endorse and facilitate commercial operation of existing and new expendable launch vehicles (ELV) by the private sector.

Less than a year later the President issued an Executive Order that directed the Department of Transportation to take the lead in promoting and encouraging the development of commercial ELV activities. At roughly the same time, Congress approved the Commercial Space Launch Act that was signed into law in October of 1984.

At the core of the law was this directive: “The Secretary of Transportation is to oversee and coordinate the conduct of commercial launch and reentry operations, issue and transfer commercial licenses authorizing these operations, and protect the public health and safety ….”

That is the keystone mission of today’s Office of Commercial Space Transportation as the commercial space transportation industry begins to reach beyond expendable launch vehicles to a more active interest in reusable launch vehicles.

The process is already underway.

The Time of Change and Regulatory Decisions

In 2004, the Scaled Composites vehicle, SpaceShipOne, captured the $10 million Ansari X Prize. The Federal Aviation Administration, through my office, the Office of Commercial Space Transportation, licensed the flights. This was the first license issued for a commercial piloted rocket launch.

By the end of that year, the President of the United States had signed into law the Commercial Space Launch Amendments Act of 2004, simply known as CSLAA. It was a pivotal moment in U.S. commercial space transportation regulatory history. The significance of the new law to the commercial space industry is best illustrated by the four main areas of the Act.

Let me say to you in advance that these provisions may sound prosaic, a not uncommon characteristic of regulatory writing. But they are the iron and steel supporting the safety environment in which human beings will travel commercially into space.

The first words of the Act state its purpose: “to promote the development of the emerging commercial human space flight industry ….” Those words placed both Congress and the Executive Branch on record in support of that goal.

The Act recognized that U.S. companies are developing space vehicles intended to carry humans. As a result, the Act clarified the FAA’s responsibility for regulating commercial human space flight. The CSLAA cautioned the Federal Aviation Administration that the “regulatory standards governing human space flight must evolve as the industry matures so that regulations neither stifle technology development nor expose crew or space flight participants to avoidable risk.”

If I may interject here, that is a tall order. No one expects it to be easy. Nevertheless, everyone in my office is prepared to give it our best shot.

The Act also introduced the term “space flight participant” to characterize people on board who are not crewmembers. The term “passenger” was avoided because these “space flight participants” will be significantly more aware of the risks and may undergo substantial training, unlike the “buy and fly” situation of commercial airline passengers.

The Act mandates that space flight participants fly in an environment of informed consent. That means the participant will be told in advance of the risk involved; given the facts to read; be required to sign the document indicating it has been read and understood; and then, and only then, board the craft.

The CSLAA, therefore, allows individuals to fly at their own physical and financial risk. Conditional indemnification was extended by the government to cover the operators of human space flight vehicles under an FAA license. Space flight participants, however, were excluded from eligibility for indemnification. Even so, nothing prevents a licensee or operator from adding individual space flight participants as additional insured parties under its liability policy.

These provisions and others were finalized on December 15, 2006 with the publication of the final rule for Private Human Space flight requirements for crew and space flight participants. The rule took effect on February 13, 2007.

The Commercial Space Launch Amendments Act of 2004 also created an experimental permit regime and directed my office to model it after existing experimental airworthiness certificates.

The objective was to come up with a process that is more streamlined, less rigid, and hopefully less burdensome than the existing licensing process. To highlight some of the differences:

A permit may only be granted for suborbital reusable rockets that are being flown for research and development, showing compliance with requirements for a license, or for crew training.

For an experimental permit the FAA has to make an issuing decision within 120 days. For a license, we have 180 days.

Under a permit, a reusable suborbital rocket may not be operated to carry property or humans for compensation or for hire. In other words, a person can’t pay money and go for a ride. No such restriction applies under a license.

There is no indemnification provision for a permitted launch or reentry. There is such a provision under a license.

On April 6, 2007 the FAA issued the final rule on these experimental permits for reusable launch vehicles.

A Final Word About Our Work

What I have tried to do today is give some examples of how we have taken the vital yet abstract notion of safe spaceflight operations and converted it into concrete standards. In an enterprise as fundamentally risky as space flight, discipline and order are indispensable to progress. The developers and operators in the United States feel as strongly about this as the national policy makers do.

My office, the Office of Commercial Space Transportation, is the frontline regulator in this effort. As noted, we are an office within the Federal Aviation Administration which itself operates under the supervision of the U.S. Department of Transportation.

People who want to build and fly spacecraft intended for commercial use, whether for payloads or taking humans into space, can come to our office to begin the process of obtaining the necessary approvals.

The application process requires time and effort in the face of exacting standards. That in itself is a plus when it comes to safety. It also facilitates the application effort since the entire process moves through the single portal of our office.

In addition, we are also the office that licenses the operation of spaceports in the United States. Our office is small in number — less than 70 full time employees — but they are gifted and passionate people, certainly a useful combination of assets in a complex enterprise.

The regulatory history I have presented today suggests that change will be a permanent feature of commercial space transportation. We, after all, have only just begun. As commercial human space flight emerges, we expect change will be our constant companion as we learn more and entrepreneurs explore new avenues of technology.

Under the guidance of the United States Congress, the FAA Office of Commercial Space Transportation expects to make course corrections as necessary, mindful of our mandate to encourage, facilitate and promote a new means of transportation while maintaining a total commitment to public safety.